dissenting: I concur in reversing the decree in this cause, but dissent from the views expressed in the opinion of the court.
This bill was to review and set aside a former decree for two causes: First, there was fraud in fact in obtaining the decree: and, second, for error appearing on the face of the decree.
The only fraud charged is, that the stipulation upon which the decree was rendered was signed by counsel without the knowledge or consent of Hawley. The proof, however, does not sustain this allegation. He was advised by his counsel of the proposed agreement, and read a part, if not all of it, and consented that it should be signed by them on his behalf. I am unable to perceive any unfairness in the transaction, and if no other error intervened, Hawley would be concluded by the stipulation.
The grave question in the case arises on the other point, viz: there is error apparent on the face of the decree.
It is alleged in the bill in the original cause that the whole quarter section, at the date of the deed of trust, was the homestead of appellees, and it appears from the record that when the supplemental decree was rendered, they were still in possession—at least the family resided there.
The residence was on the west half, and it is insisted that, because Hawley only had an equitable title to that part of the quarter section, the right of homestead did not attach. I do not see how the position assumed can be maintained.
It is apparent, from the facts in the record, the payment to Steel of the balance of the purchase money due from Hawley for this tract of land was simply an additional loan, and the deed taken by Allen in his own name was for the security. The money was advanced and'the deed taken to render available the security afforded by the deed of trust. The fact that Allen subsequently, and while the bill was pending, caused the trustee named in the deed to sell the premises, and sought to obtain the title in that way, strengthens this view. If the money was advanced merely as a loan, and the deed taken as security, although absolute in form, it would be only a mortgage. In that event Hawley would have such an interest in the premises under his bond for a deed as would be liable to levy and sale on execution, and to which the homestead would attach. It is not necessary that he should have ■an absolute title before he could avail of the benefits of the homestead law. Conklin v. Foster, 57 Ill. 104.
If, however, it shall be admitted that the money paid Steel was not an additional loan, but was for the title to the land itself, there is still a fatal error in the record.
Hawley was the head of a family, and was in possession of the premises under a contract of sale, and had paid a considerable portion of the purchase money, and his homestead right would clearly attach as to all claims other than that for the purchase money. The decree rendered on the stipulation of the parties included the amount originally loaned to Hawley as well as the amount paid to Steel. If the decree had been only for the amount claimed to be due for the purchase money, of course the homestead could not prevail against it. As to all other claims, however, it would be the paramount right.
The court rendered a decree in the nature of a strict foreclosure, barring the equity of redemption for indebtedness other than that claimed to be due for the purchase money, without disposing of the question of homestead, which had been distinctly made by the bill, and had never been released, without causing the same to be assigned under the provisions of the statute. This was manifest error, and is apparent on the face of the record itself.
Whatever may be the equities between Hawley and Allen, the decree, so far as it affected the homestead of Mrs. Hawley, was an absolute nullity. She was entitled to a homestead in the premises as against all the indebtedness of her husband, except for the purchase money or for improvements. Her rights were cut off by a decree for other indebtedness in a proceeding to which she was in no way a party. Notwithstanding her interests had never been passed upon by the court, she was ejected from her homestead, in the absence of her husband in the military service, by virtue .of a writ of assistance issued against him at the instance of appellant. °
The case of Booker v. Anderson, 35 Ill. 66, in some of its facts, is not unlike the case at bar. There it was said: “The wife being invested by the law with this right, she can only be deprived of it in the mode prescribed by the law. Her release of the right, a debt incurred for the purchase or improvement of the homestead, or a removal from and its abandonment as a homestead, will bar her right to interpose her claim. But the husband has no power in any other mode to affect the wife’s right. His receiving a lease and paying rent to appellant has no such effect.”
The fact that Hawley solemnly agreed of record to become the tenant of Allen, and may have become so in fact, did not affect the rights of the wife. She had never abandoned or released her homestead in any manner authorized by the law. Much the larger portion of the debt sought to be enforced against the homestead was' confessedly for borrowed money, and not for its purchase or any improvements, and her rights therein could not be cut off by any summary decree of the court, if it be conceded it was rendered by the agreement of the husband. Such a proceeding would defeat the beneficent design of the law to preserve in every case a homestead for the wife and children. The right has its foundation in the statute and its solemn guaranties, and the husband can not be permitted to consent that the court may decree that right away.
It is insisted that this bill is simply a bill of review, and as such no relief can be granted upon it.
Like the one in Griggs et al. v. Gear, 3 Gilm. 2, it may be termed an original bill in the nature of a bill of review, and may be filed at any time without leave of court. Such a bill may be brought for fraud in fact or fraud in law. This being the character of the bill filed, it would clearly warrant the relief decreed. The entry of Allen into possession being unauthorized, the court correctly held that he was a mortgagee in possession-, and that an account should be taken. Such a decree was authorized by the rule stated in Mix et al. v. King, 55 Ill 434.
I concur in reversing the decree on the ground there was error in the manner in which the court caused the account to be taken. It does not appear that anything was allowed- for reasonable repairs and taxes. These were items that should have been deducted from the rental value of the premises. In other respects, the account taken seems to me to be most inequitable. _